2013 Kenyan Pre-Election Report: The Heat is On

by Joshua Tucker
The heat is on in Kenya. And it’s not just because the rains are late.

As the country prepares for it fifth multi-party elections on March 4, 2013, the competition is flaring. The top two contenders for the presidency are Uhuru Kenyatta and his National Alliance (TNA) and Raila Odinga and his Orange Democratic Movement (ODM). Kenyatta, son of Kenya’s first president Jomo Kenyatta, is running despite having been indicted by the International Criminal Court (ICC) for his alleged role in perpetrating some of the worst inter-ethnic violence in the country’s history. Indeed, the post-election violence of 2007-2008 left over 1,000 dead and up to 500,000 internally displaced. Odinga is the current Prime Minister, and it was after his apparent loss to incumbent President Mwai Kibaki in 2007 that the violence began, with ODM supporters crying foul. After Kofi Annan helped broker a peace agreement, Kibaki and Odinga agreed to a power-sharing agreement.

Now, with 104 days left until the next poll, Kenyans are hoping for the best but preparing for the worst. There are signs that peace will prevail this time around. After all, in 2010 Kenyans voted in a new constitution, and it could be the harbinger of a new and more progressive era in Kenya. Lauded as one of the world’s most progressive constitutions, some of its most notable features include several new independent commissions, one of which is the Independent Electoral and Boundaries Commission (IEBC), the decentralization of power in 47 county governments, quotas for women, youth and the disabled in government, a proportional representation electoral system for parliamentary seats and a comprehensive bill of rights.

Unfortunately, however, Kenya has been slow to implement many provisions directly relevant to the upcoming elections. The gender rule is one such example. The constitution stipulates that neither gender can make up more than two-thirds of any elective body in the nation, including the National Assembly, the Senate and county governments. An agreement on how to ensure this ratio is yet to be realized. While some suggest that specific constituencies be set aside for women or that political parties submit party lists containing equal numbers of men and women, others insist that the rule be scrapped entirely. The latter would leave Kenya lagging behind its neighbors with regard to gender parity. Currently, only 9.8 percent of its parliamentarians are female, compared to Rwanda’s 56.3 percent, Tanzania’s 36 percent and Uganda’s 35 percent. Without some consensus on how to move forward, the country faces a constitutional crisis, for it will be unable to legally form a parliament without the required proportion of male and female legislators.
Another problematic area is the police, widely accused of human rights violations during the 2007-2008 post-election violence. A new inspector general was to be in place within one year of the promulgation of the constitution, but the executive has been slow to fulfill this requirement. Two years on, the short-list of candidates for the position was announced only this week. The delay has been interpreted as a way for the executive to maintain the status quo and avoid the implementation of important police reforms in the lead-up to the March polls. To be sure, police brutality is still an issue. During recent protests over the murder of ODM candidate Shem Onyango in Kisumu, police were accused of using teargas against unarmed, peaceful bystanders. Officers were also accused of purposely locking the door of a container next to Nyanza General Hospital, inside which three people were seeking refuge. The three were burnt to death inside.

Political parties have also been attempting to circumvent parts of the constitution. Recently, MPs were successful in forcing the continuation of party hopping. The Electoral Act required that members belong to the party on whose ticket they will contest elections three months prior to the date on which parties are to submit their party lists. As the deadline approached, over 100 MPs raised outcries, stating that parliament would be in crisis because adhering to the rule would mean they would have to resign from their seats. After much political wrangling, the deadline was extended from early October 2012 to early January 2013. Parties have also attempted to amend the Political Parties Act and the Elections Act to allow them to include presidential and deputy presidential candidates on party nomination lists, negating the entire point of such lists, which are meant for members of marginalized communities, youth, women and the disabled.

Kenyans have also been disappointed with the political response to constitutional provisions related to integrity. MPs passed a diluted version of a bill on leadership and integrity, including the removal of a vetting process of people seeking elective office. Indeed, Kenyatta’s close ally and purported running mate, William Ruto, was also indicted by the ICC for his alleged role in the 2007-2008 violence. Despite the charges leveled against them, the two are in the thick of their campaigns. The courts are yet to decide whether or not they may legally continue to contest elections. There was also public outcry when MPs secretly gave themselves an extra Sh 9.3 million (approximately $109,000) each in severance pay. This was in addition to the Sh 825 million (approximately $9,600,000) recently approved as gratuity payments for MPs. It was especially appalling given that it came soon after a nationwide teachers’ and doctors’ strike which demanded, among other things, higher pay.

And then there is the IEBC, the independent electoral body mandated to register voters and implement voter education, delimit constituencies, regulate political parties, settle electoral disputes, facilitate election monitoring, and regulate campaign finance. It has enjoyed many successes, including a successful constitutional referendum, and 15 parliamentary and 60 civic by-elections. It has also made impressive moves to connect with the Kenyan electorate, inviting the public to participate in question and answer sessions, where Kenyans can also voice criticisms and suggestions to the Commission. Nonetheless, it has been embroiled in controversies that threaten its reputation as an independent body. The decision to try and prevent vote-rigging and fraud by using biometric voter registration machines to create a new electoral roll, while admirable, has been fraught with problems. As a result of a series of issues, including a cancelled tender process and confusion over the delivery and cost of the kits, the IEBC has been accused of not being ready for the polls. Moreover, it is now scrambling to explain a controversial decision to shuffle 210 constituency coordinators. While the IEBC says the moves were made in order to cut any political links these employees might have developed in these areas, disgruntled workers claim that the decision was unilaterally made by a senior IEBC officer who ignored certain conditions, including medical ones, that required certain workers to be posted close to doctors/hospitals.

Clearly, more political will is required to fully implement the constitution.

Even aside from all this political wrangling, though, there are emerging reports of bloodshed, which could be portents of violence to come. In Kisumu, gangs have terrorized people in middle- and upper-class neighborhoods for the last several weeks. It is believed that such gangs are controlled by politicians in preparation for the upcoming elections. It was also in Kisumu that armed assailants murdered ODM candidate Onyango, cited above, and severely injured his wife. In the coastal port of Mombasa, the Mombasa Republican Council (MRC) is clamoring for its secessionist claims to be addressed, threatening to disrupt voter registration and the voting process if the government does not respond. In the Tana River delta, the ethnic aggression that killed over 100 people in September 2012 is being blamed on opportunistic politicians.

And then there are the local and national politicians themselves, many of whom are blamed not just by the ICC but by watchdog groups, for their inciting hate speech and calls for ethnic cleansing. MP Ferdinand Waititu was charged with hate speech and inciting violence after a video showing him encouraging his constituents to chase away members of the Maasai community was released. After declaring his unwillingness to accept any court decision that bars Kenyatta and Ruto from running for office, MP William Kabogo was recently accused of hate speech. MP Margaret Wanjiru was similarly accused after she stated that she would not accept “outsiders” trying to “take” the office of governor.

Perhaps most importantly, Kenya’s political parties have shown little sign of shifting away from being based in ethnic identities. Although the constitution outlaws ethnically based parties, it is clear that leaders are still relying largely on their co-ethnics for votes. This is hardly surprising, given Kenya’s entrenched pattern of patronage politics. Indeed, MPs likely use hate speech to drive certain groups out of their constituencies specifically so they can rely on ethnic blocks to vote them into office. It remains to be seen whether or not proportional representation will moderate this strategy. With regard to the presidential contest, alliances are based at least partially on ethnic calculations. Thus, Kenyatta is counting on his co-Kikuyus (and closely allied Meru and Embu groups) for support, but by courting Ruto as his running mate he also hopes to win Kalenjin votes. Parties based on identity in this way leave little room for issue-based competition.

Things are indeed heated in Kenya. Let’s hope the new constitution is more than just a piece of paper, easily burned in high temperatures.